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TOWNSHIP ROSS v. COMMONWEALTH PENNSYLVANIA (06/03/88)

decided: June 3, 1988.

THE TOWNSHIP OF ROSS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, RESPONDENT



Appeal from the Order of the Department of General Services, in the case of The Township of Ross v. Commonwealth of Pennsylvania, Department of General Services, Administrative Proceeding Act 101-1976, as amended.

COUNSEL

Elaine V. Preston, with her, William W. Milnes, Brandt, Milnes & Rea, for petitioner.

David A. Fitzsimons, Assistant Counsel, with him, Michael D. Reed, Chief of Litigation, P. Alan Zulick, Deputy Chief Counsel, and William W. Warren, Chief Counsel, for respondent.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 533]

The Township of Ross (Township) has petitioned for review of an order of the Department of General Services (Department) affirming the decision of the Bureau of Risk and Insurance Management (Bureau) denying the Township's claim for reimbursement of a $25,000 death benefit the Township paid to the widow of Leroy Ehrman.

Leroy Ehrman was a volunteer fire fighter in the Township. On April 19, 1977, Mr. Ehrman was directing traffic at the scene of a fire to which he had responded. While directing traffic, Mr. Ehrman told a fellow fire fighter he did not feel well, and shortly thereafter Mr. Ehrman suffered a fatal heart attack. On November 24, 1980, the Township paid Mr. Ehrman's widow $25,000 because it believed Mrs. Ehrman was entitled to the money by virtue of section 1 of the Act of June

[ 116 Pa. Commw. Page 53426]

, 1976 (Act 101), P.L. 424, as amended, 53 P.S. ยง 891, which provides that a political subdivision shall pay that sum to a surviving spouse of a fire fighter killed in the performance of his duties. The Township then sought reimbursement from the Bureau, which denied reimbursement on March 24, 1981. The Township appealed the denial to the Department and, simultaneously, to this court.*fn1 Then, on October 16, 1981, Act 101 was amended,*fn2 with the amendment to be retroactive to January 1, 1976. The Department then advised the Township to resubmit the claim to the Bureau so the amended law could be applied.

On resubmission, the Bureau again denied the claim, and the Township again appealed to the Department. The Department affirmed the Bureau's denial of

[ 116 Pa. Commw. Page 535]

    reimbursement. The Township appealed to this court (2502 C.D. 1982). While the appeal was pending, this court decided Seybold v. Department of General Services, 75 Pa. Commonwealth Ct. 118, 461 A.2d 353 (1983) (Seybold I). In that decision we invalidated the definition of "killed" the Department had been using,*fn3 and which was used in Mr. Ehrman's case. Thus, the parties requested we remand this case so the Bureau and Department could render a decision without reliance on the invalidated definition. We remanded and the case was decided once again. The Bureau again denied reimbursement, and the Department affirmed. The Township has petitioned for review.

The Township has presented three issues for review. The Township asserts the Department's order is: 1) arbitrary and capricious because the Department's hearing examiner ignored evidence; 2) not in accord with the law because it conflicts with our decision in Seybold I; and 3) not in accord with the law because the Workmen's ...


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